Transcript

Damien Carrick: Hello, welcome to the Law Report. There has been a great deal of anticipation around the upcoming Royal Commission into how institutions have handled allegations of sexual abuse against children. Well, we can now confirm that the Commission's first public sitting will be on Wednesday, 3 April. On that day Justice McClellan, sitting in the County Court in Melbourne, will outline in detail exactly how this Commission will operate.

Now, to say the least, the scope of the Commission is enormous. Government agencies, schools, religious organisations, foster care, sports clubs, all of these institutions are going to be investigated. And this enormous process is set to be completed by the end of 2015.

The Australian Royal Commission will take some of its cues from a similar series of inquiries that took place in Ireland over the past decade. Today I'll be speaking with two major figures in Ireland's inquiry process; one a judge, the other a survivor of abuse.

First let's rewind to the 2009 Murphy report. It blew the lid on the extent of abuse and the extent of cover-ups by Dublin's Catholic Archdiocese.

Andrew Madden [archival]: This report is a shocking indictment on the Catholic Church in Dublin. Its publication may bring closure for some victims. It may also serve as the only justice some victims ever receive.

Damien Carrick: The report was a bombshell. Reactions to it ranged from Archbishop of Dublin, Diarmuid Martin:

Diarmuid Martin [archival]: I offer to each and every survivor my apology, my sorrow and my shame for what happened.

Damien Carrick: To government ministers:

Dermot Ahern [archival]: As I read it I felt a growing sense of revulsion and anger. Revulsion at the horrible, evil acts committed against young children, anger at how those children were then dealt with and how often abusers were left free to abuse.

Damien Carrick: To victims:

Marie Collins [archival]: The institution came before the welfare of the children of this country, and all their denials are now proved to be false.

Damien Carrick: The namesake of the Murphy report is its author, Judge Yvonne Murphy.

In a word, Judge Murphy, what comes to mind to you when you think about…when you hear about the dimensions of the Australian Royal Commission?

Yvonne Murphy: Terror, because it is a huge, huge job, there's no doubt about it. Australia is a vast country, it's going to cover the whole country, as far as I understand it. So the people dealing with the Australian inquiry have a very big, big task ahead of them.

Damien Carrick: Colm O'Gorman is a survivor of child sexual clerical abuse and a leading campaigner for the rights of survivors.

Colm O'Gorman: The intent seems good enough, but I would have concerns that the process is so large and so broad, and in some ways frankly, and I don't mean this in any disrespectful way towards the Australian government, but I wonder if there is an element of naiveté about a belief that it can be so broad and capture investigations into so many and such diverse entities.

Damien Carrick: Colm O'Gorman, and we'll hear more from him later in the program.

Ireland has had four major inquiries into child abuse. There was the momentous nine-year long Ryan Commission, and we'll get to that in a moment. The other three inquiries focused on specific Catholic dioceses around Ireland, in particular the way each of them handled allegations of child sex abuse levelled at their priests. And two of these, into the archdioceses of Dublin and into the dioceses of Cloyne, were led by Judge Yvonne Murphy.

Yvonne Murphy: Well, you're quite right, there have been four, and indeed there has been a fifth one now. But the first one started with effectively the Ryan Commission, which looked into institutional abuse. And most of the institutions were Catholic-run institutions.

Damien Carrick: Residential schools.

Yvonne Murphy: Residential schools or borstals, if you're familiar with that word. And it looked at both boys and girls. And, as I said, it looked not only at the sexual abuse but also the physical abuse of children, and it was a very wide-ranging inquiry. And initially they got complaints from I think over 2,000 people who wanted to give evidence. And remember, our country is only 3.5 million people at that stage. And they then had to narrow their focus because they didn't feel they could have 2,000 individual trials, if you like, before the Commission, so they narrowed it down. And eventually at their investigation committee they heard evidence from nearly 500 people who had been detained in those institutions.

But in addition to that they had what they regarded as a confidential committee where somebody who felt they had been abused could come and give their story to the confidential committee, and it was uncontroverted, their story, but it was recorded for the purposes of the final report.

Damien Carrick: So you had these two streams; one where people would be investigated and there'd be some attempt to find out what actually took place and the allegations would be challenged, and the other stream where people could give their stories of abuse and not be challenged.

Yvonne Murphy: Exactly. And an important ingredient of that Commission was that very early on in the Commission's existence the lawyers for the people who felt they had been abused felt that they could not advise their clients to give evidence before the Commission unless there was a redress scheme in place. They felt that the people would be inhibited from giving their evidence, and the government set up completely independently a redress board, and its object was to provide compensation for people who felt they had been abused. And maybe we'll deal with that later because that was a very important ingredient in the whole process.

Damien Carrick: Briefly, I think many thousands of people availed themselves of that process, and something like $80,000 or…

Yvonne Murphy: Yes, I think over 16,000 people applied for compensation, and just over 14,000 have received compensation, and the average has been up to AU$80,000 per victim survivor. The threshold for actually receiving compensation was quite low because you simply had to prove that you had been in an institution and that you had been abused either emotionally, physically or sexually, or maybe in some cases all three, in which case a much higher award would have been given.

Damien Carrick: And this Ryan Commission, that went from 2000 all the way up to 2008 or 2009, didn't it.

Yvonne Murphy: It did, but it's a very, very lengthy report, and you have to realise too there were quite a number of legal challenges to its existence that went before the courts, and some of those took quite a long time to resolve. But it was a long time, there's no doubt about it.

Damien Carrick: So the Ryan report or the Ryan inquiry is the one which is most famous internationally, but there were three others.

Yvonne Murphy: They were. The first one that started was one that was a nonstatutory inquiry run by a former Supreme Court judge, Mr Justice Murphy. And there had been allegations of abuse in the South East of Ireland. It was a relatively small diocese, the government set up this nonstatutory inquiry and it was called the Ferns inquiry, and Mr Justice Murphy presided over that. And actually, even though it was a relatively small diocese, they received over 100 complaints against 21 priests between 1962 and 2002. And they produced their report in 2006.

But while that was pending there were requests maybe to establish other inquiries into other Catholic dioceses, and that's where I came in because in 2006 I was asked to chair the inquiry into the Dublin Archdiocese, which is by far the largest diocese in the whole country, containing over 200 parishes and over a million people at that stage, and that's when I started in 2006, along with two co-commissioners, both with a legal background but one working primarily in the social services and the other was the lawyer to the Labour Court which is our big industrial relations forum in Ireland.

Damien Carrick: And to clarify, I understand that the Dublin inquiry was not to look at whether there was abuse but rather to look at how complaints of child sexual abuse were dealt with by the church.

Yvonne Murphy: Exactly. We didn't form any opinion, and neither did the Ferns inquiry or the Cloyne inquiry. No inquiry looking into a diocese as such were required to say whether abuse had taken place, all we were required to do was how the complaints were handled by church and state authorities. That was the brief.

Damien Carrick: These extraordinary inquiries, one went for nine years, one went for three years, the others went for a number of years. How were they received by the victims, the survivors of abuse?

Yvonne Murphy: Well, I'd have to say that in relation to the Dublin inquiry, two of the victim survivors, Marie Collins and Andrew Madden, were very active in promoting the setting up of those inquiries. I mean, they made themselves very prominent, and the two of them were leading lights really in the campaign to set up these inquiries. And as a result of that, because they were to large extent victim/survivor driven, there was very good cooperation. And as I said, the young man in Wexford, Colm O'Gorman, again because it was a victim/survivor driven people were very pleased to come forward and give their evidence. There wasn't really a problem in that regard from the victim/survivors' point of view.

Damien Carrick: I understand that in our Royal Commission there will be six commissioners appointed, and it won't be a prosecuting body but it will be able to ensure that issues raised by the Commission can then go on to be investigated. So there will be a process established to refer to the police cases which warrant investigation, and I think there will even be some kind of special investigative unit to work closely with police to investigate and prosecute past abuses.

Yvonne Murphy: Well now, in relation to our inquiries, the material can be passed on to the police, but the actual evidence that was taken before the Commissions cannot be used in a criminal prosecution.

Damien Carrick: Hang on, distinguish those two things for me.

Yvonne Murphy: Well, if somebody gives evidence before either the Ryan Commission or the Murphy Commission or the Cloyne Commission, actual files can be passed on, but they can't be used in evidence. So in other words, to give a practical example, if a priest came to one of these Commissions and admitted that he had abused, say, 100 young children, that could not be used in evidence in a criminal trial against him.

Damien Carrick: It could be used to go off and find evidence to support a prosecution, but the statements themselves couldn't be used.

Yvonne Murphy: No, and if he denied that in evidence in the criminal trial it would have to be proved beyond reasonable doubt that these allegations were true.

Damien Carrick: Why was that?

Yvonne Murphy: That's the way the Tribunal of Inquiries Act was set up and also our Commission was developed on from the Tribunal of Inquiries Act.

Damien Carrick: That's what you had to work with. Do you think it was a good system?

Yvonne Murphy: Well, the Commission process, which involved taking most of the evidence in private, was a very good system because there was less (if you'll forgive me, Damien!) media hype about the whole process. I mean, nobody knew if a cardinal was coming in to the Commission or if an archbishop or a bishop was coming in, whereas in the tribunals that we had looking into payments to politicians, the cameras were there at the ready, naturally enough, waiting for the politicians to come in and give their evidence, waiting when they came out, and it was all in public. So it was a completely different dynamic, the commission of inquiry that Cloyne and Ferns and Dublin were involved in, completely different process. If anybody had asked for a public hearing they could have received it, but nobody asked in the Dublin Commission for a public hearing.

Damien Carrick: Were there prosecutions and ultimately convictions which arose out of the processes in these commissions of inquiry?

Yvonne Murphy: Yes, there were. In fact there was one priest, when we sent out our report to him we alleged he had abused approximately 100 people and he wrote back to us and said that we had underestimated that. He was actually in the courts only about four weeks ago. Well, he's an elderly man now living in his community, and he pleaded guilty.

Damien Carrick: And that was just four weeks ago? Convicted for offences against 100 children or…?

Yvonne Murphy: Well, I actually am not in a position to say precisely what the charges were because they weren't in the paper saying precisely how many children were involved, but it did say there would be further prosecutions pending.

Damien Carrick: Do you know why they are restricted in their discussion?

Yvonne Murphy: No, no, I don't think there was anything untold about it. I think maybe because there were further prosecutions pending they didn't maybe want to highlight…or maybe there had been a court restriction put on highlighting exactly what the charges were there.

Then there was another priest who admitted to abusing about fortnightly over a 25-year period, and he actually pleaded not guilty to the sexual abuse and buggery of a number of young boys, and he was convicted about two years ago by a jury.

Damien Carrick: And the ball started rolling as a result of the information collected in these inquiries.

Yvonne Murphy: Yes, I think so. Certainly in the case of some priests because the way the Dublin Commission reported was it took the 46 priests' stories and it had a chapter on each priest from the moment the allegation was made or the suspicion arose and it followed the trail for when the complaint was made, what happened, what was done about the complaint, was it given to the police, was it given to the health authorities, and it followed the trail. And the newspapers…some of these priests were given false identities, if you'd like to put it that way, Latin names. Others their proper names were in the paper.

Damien Carrick: Because this wasn't a court of law where you have been found guilty beyond reasonable doubt.

Yvonne Murphy: Yes, and also because prosecutions might have been pending or the police were investigating simultaneously to when we were doing the Commission report.

Damien Carrick: Yvonne Murphy, there's so much we could talk about, but with all your experience in Ireland and those of people like you who have been working on these issues for literally years, tell me, what advice would you offer your counterparts here in Australia?

Yvonne Murphy: Well, it's very difficult to offer advice to any other country because I'm honestly not entirely familiar with exactly what happened here. But one of the positive aspects of what happened before the Dublin Commission was that even though it was all in private, anybody who was identified or identifiable in the report we sent out a copy of that, what we were saying about them, before we published. So they got an opportunity to come back if they were dissatisfied and challenge what was being said about them, and that meant that there were no judicial reviews after the Commission's report was published. I can't say that there won't be any into the future but there wasn't at that particular time.

So I think it's important that there is a system set up for obviously the victims and survivors, a forum that they feel very comfortable in. And what we did in that regard was we made sure that every victim and survivor, or if a priest or a bishop wanted to avail of this, they could talk to one of our legal advisers who was always accompanied by a researcher, and they could tell their story and the process could be explained and the implications could be explained. And that proved very effective. They might come in one day, go home, think about it and then come back and give their evidence, and that's very important, that people feel comfortable.

The other thing that I thought was very important was that we held the Commission physically a good bit away from the courts so that people didn't feel that they were in an adversarial system, and that was very important. And we also tried to make the hearing room as relaxed as possible with plants and we had coffee available to give people breaks, we made it quite informal, even though people were taking an oath to tell the truth and nothing but the truth, but we did try and make it as easy as possible. And our premises overlooked a beautiful park and that was good as well. It was a nice environment and I think that's very important from everybody's point of view.

Damien Carrick: Judge Yvonne Murphy, who was recently in Sydney. She gave an address at the Sydney University Law School, the first of its 2013 Distinguished Speakers Program.

I'm Damien Carrick and you're listening to the Law Report on RN, Radio Australia and ABC News Radio. I'd love to hear your thoughts on today's show. You can either tweet the Law Report by using the handle @LawReportRN, or you can head to the Law Report page on the RN website and there leave your comments.

Today I'm exploring the four Irish inquiries into child abuse and the lessons it might hold for Australia's upcoming Royal Commission.

Colm O'Gorman: I believe one of the most important things that helps to move many of us towards whatever resolution or healing might be possible at the individual level is a simple and frank acknowledgement of the truth.

Damien Carrick: Colm O'Gorman is a leading campaigner for survivors of child abuse in Ireland. From the age of 14 he was abused by a Catholic priest. His experiences are detailed in his book Beyond Belief. Colm O'Gorman spearheaded one of the four inquiries, that into the diocese of Ferns.

Colm O'Gorman: When victims of abuse have been forced to carry responsibility for what has been done to us for so many years, it's terribly important that we can place that somewhere, that we put that down and don't have to carry it any more. And it's simply not acceptable that the victims of crime, some have to carry around almost society's shame or society's failure to properly address that history. So the truth is a really important first step, that really begins to identify who was responsible, why the abuse happened in the first instance, and what changes need to happen at the level of law, policy and practice that can prevent abuse in the future. Those things in my experience have been very important for victims and survivors of abuse who above all want to ensure that these kinds of gross failures can't happen again in the future.

Damien Carrick: There were the three inquiries into individual archdioceses and there was also the much broader Ryan inquiry into all forms of abuse experienced by children in residential schools run by the Catholic Church. What did that inquiry achieve and how was it different from what the three inquiries into individual archdioceses achieved?

Colm O'Gorman: First of all the model of investigation was different, it was carried out under quite cumbersome model of inquiry, tribunals of inquiry, which is a legal construct here in Ireland, and it took 11 years for that investigation ultimately to finally report. It was an inquiry that also had a somewhat different focus because the responsibility of the state was much clearer. So children had been placed in state funded institutions that were, in the main, operated by the Roman Catholic Church. So the state was more prepared to acknowledge its responsibility.

It's also fair to say that the level of violation experienced by children in those institutions was just off the charts just in terms of depravity and the breadth of abuses that children experienced. I mean, just appalling physical violence, extraordinary neglect and exploitation, forced labour, rapes, sexual assaults. I mean, the abuses that were documented by the Ryan inquiry and in the Ryan report are truly appalling, they represent undoubtedly the greatest human rights violations in the history of this state.

The inquiries into the various dioceses were somewhat different because they were investigating abuses in which perhaps the state felt it didn't have a responsibility, even though I would have disputed that. In my mind and under international law it's very, very clear that the state has a responsibility to prevent these kinds of violations. And where particularly it's on notice that they are happening and it fails to intervene, it becomes itself responsible for those violations.

Those were important investigations to begin to identify and plug some of the gaps, not just in terms of policy, law and practice but even around political thinking and political accountability.

Damien Carrick: The evidence of survivors in these inquiries, what form did they take? I understand that in the Ryan Commission, for instance, there was evidence that you could give and then you would be challenged on the evidence you gave. And there was another form of evidence which was unchallenged or uncontroverted and confidential information. Can you tell me about the different forms of evidence, the different possibilities open to survivors?

Colm O'Gorman: Yes, people who had experienced abuse who came forward to the Commission to enquire into child abuse, the Ryan Commission, had two options. They could either come before what was called the confidential committee or the investigative committee. The confidential committee, as the name suggests, was one where their testimony, their stories could be recorded to gather together a broad general view of what conditions were like within the various institutions.

If however people wanted to come forward to the investigation committee, their evidence was presented in a much more judicial setting, there was cross examination, very robust and often repeated cross-examination by multiple teams of barristers acting for, for example, alleged perpetrators, the individual institutions that they were placed in, the orders that ran the institutions, the various state departments that would have been involved. So it was at times for victims a very challenging, difficult and painful and quite bruising process where their evidence was robustly contested, very often with people being in the witness box for a number of days.

Damien Carrick: Here's Michael O'Brien, one of the survivors who gave evidence at the Ryan Commission. He's speaking on Irish TV's Question and Answers program back in 2009.

Michael O'Brien [archival]: I went to the Laffoy Commission, and you had seven barristers there questioning me and telling me I was telling lies, when I told him that I got raped of a Saturday, got a merciful beating after it, and then he came along the following morning and put Holy Communion in my mouth. You don't know what happened there. You haven't the foggiest. You're talking through your hat there.

You said it was non-adversarial. My God, seven barristers throwing questions at us non-stop. I attempted to commit suicide, [turning to his wife] there's the woman who saved me from committing suicide on my way down from Dublin after spending five days at the Commission, five days I spent at the Commission. They brought a man over from Rome, 90-odd years of age, to tell me I was telling lies, that I wasn't beaten for an hour non-stop by two of them, by two of them, non-stop, from head to toe without a shred of cloth on my body.

Damien Carrick: Colm O'Gorman, how did survivors respond to these robust forms of questioning you've described in the private investigative committee?

Colm O'Gorman: One of the challenges in an inquiry such as this is that because it was determined that the whole thing should be held…the hearings of the investigative committee should be held in private, I think in some ways that gave licence to people who had an interest in very aggressively challenging the evidence of survivors to do so because they had the cover of secrecy to do that. I think had the hearings been more public perhaps some of the more aggressive cross-examination that people experienced wouldn't have happened because there would have been some concern for how that would have been perceived publicly.

The Ryan Commission certainly felt…I mean, its first chairperson was a High Court judge called Mary Laffoy who resigned in 2003 saying that neither the state but more importantly the religious congregations who were subject to inquiry were cooperating effectively with the process. There's no doubt about the fact that many of the Catholic Church congregations worked very aggressively to drag out the process, to challenge it at every opportunity. They were highly adversarial in how they engaged with the process of investigation, and that was enormously challenging and at times, as I say, quite bruising and quite distressing for people who gave evidence before the Commission.

Damien Carrick: And was the feeling amongst survivors that this was nevertheless a worthwhile process?

Colm O'Gorman: I think there was certainly a spectrum of feelings, but I think that ultimately people felt that the report was very worthwhile. I have to say that over the 11 years of the investigation there were a number of significant moments where victims and survivors are very failed by the process. At the outset of it the government of the day had promised that they would, for instance, investigate every single complaint that was made to them and make findings of fact and name perpetrators. That simply wasn't realistic or even legally possible.

But ultimately I think that for survivors and indeed generally for the Irish public, the publication of the report named the truth of what had happened in very, very clear terms, and there was no longer any denying or challenging the evidence of survivors. People had been speaking about what happened in these institutions for decades, they just hadn't been listened to, they hadn't been believed. We moved beyond that point with the publication of the report and that was hugely important.

Damien Carrick: Colm O'Gorman, here in Australia we're going to embark shortly on a Royal Commission process, and the terms of reference are very large. We're going to be looking at the systematic failures and the issues in the response of organisations and institutions to sexual abuse of children. But it will look at private, public, non-government agencies involved with children, it will include schools, sporting clubs, orphanages, foster care, religious organisations, and we are a multi-faith, multi-denominational society, a very diverse society. What comes to mind for you when you hear about the Australian project and its dimensions?

Colm O'Gorman: Let's talk about the positive first. I've seen the terms of reference for the inquiry. One of the things that I really welcome was how grounded it was, for instance, in the UN Convention on the Rights of the Child, and that those principles really seemed to be informing the approach that the Australian government wanted to adopt to investigation. That's the good news.

The intent seems good enough, but I would have concerns that the process is so large and so broad, and in some ways frankly, and I don't mean this in any disrespectful way towards the Australian government, but I wonder if there is an element of naiveté about a belief that it can be so broad and capture investigations into so many and such diverse entities.

And in Australia in I think a little over a two-year timeframe this Royal Commission is meant to carry out an investigation effectively right across Australian society. I think it's incredibly ambitious. I think it will be very challenging, and I'd be concerned about its ability to deliver.

Damien Carrick: Colm O'Gorman, a leading campaigner in Ireland for survivors of child sexual abuse.

That's the Law Report for this week, and we have a link to a full list of support and counselling services at our website, abc.net.au/radionational/lawreport.

A big thank you to producer James Pattison, and also to audio engineer Garry Havrillay. I'm Damien Carrick, talk to you next week with more law.

Guests

Judge Yvonne Murphy

Former judge of the Circuit Court in Ireland and chair of the government appointed commissions of investigation into child abuse in the Roman Catholic dioceses of Dublin and Cloyne